Excerpt:.....at in the calcutta case was that the description of the suits mentioned in article 62 as suits for money received by the defendant for the plaintiff's use pointed to the well known english action in that form and that consequently the article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff in circumstances which in law render the receipt of it by the defendant a receipt for the use of the plaintiff. article 62, should also apply to a case like the present, where the respondent obtained money from the government which really belonged to the appellant. 5. the principle laid down in the above decision that a special article would exclude the application of a more general one, is well settled in law. there is also another equally..........ease would be article 62, which provides 'for money payable by the defendant to the plaintiff for money received by the defendant to the plaintiff, it will be deemed to be money received for the plaintiff's use.' a period of three years from the date of the receipt of the money by the defendant is prescribed for a suit of that category. the article contemplates claim against a defendant who had received money in circumstances which make it obligatory upon him ex aequo et bono to return the same to the plaintiff and covers cases of actions for money had and received. an action for money had and received on account of the rigidity and technicalities of the law of pleading in england have acquired a peculiar meaning. but, so far as this country is concerned, it has been held to include all.....

Judgment:

Ramachandra Iyer, C.J.

1. The substantial question that arises for determination in this second appeal relates to limitation, T. S. No. 1194/2 in the Madurai town, an area of about 76 cents, was acquired by the Government for the benefit of the municipality at Madurai for providing house-sites for Harijans. It is now found by both the courts below,-- a finding which has not been challenged before us--that the appellant was entitled to four cents on the southern portion of the property acquired. The first respondent, claiming that he was entitled to the entire 76 cents, applies for and obtained the compensation amount from the Land Acquisition authorities. The award of the Land Acquisition Offcer is dated 10-2-1953. The payment of the amount was made on the following day. The appellant after coming to know that the amount due to him by way of compensation in respect of four cents, to which he. had title, was paid to the first respondent, issued a notice to the Government purporting to do so under Section 80 C. P. C., claiming the eompensation amount from them. A reply was sent on behalf of the Government to the appellant, referring to Section 31(2) of the Land Acquisition Act, under which the appellant's right was only to proceed against the firest respondent who had obtained the money from the Government.

The appellant accordingly instituted the suit out of which this appeal arises, on 31-10-1956 for recovery of a sum of Rs. 1595-10-11 against respondents 1 and 2, the latter being the Municipality of Madurai. No relief was sought against the Government, although it was impleaded as the third defendant to the action. The case of the appellant as disclosed in the plaint is that the first respondent, though aware of his title to four cents of property, misrepresented to the Land Acquisition Tahsildar that lie was entitled to the entire property and obtained from him the compensation for that extent. It is also stated that the first respondent was enabled to obtain the excess amount of compensation, by the second respondent--Municipality, who, though aware of the respective rights of the parties in the survey number, did not apprise the Land Acquisition authorities of the same. Implicit in the case of the appellant in the plaint is the averment that the Government whose duty was to pay the compensation amount to the true owner of the property, paid the compensation due to the appellant in respect of his four cents of land to the first respondent by mistake. It cannot be disputed that, even if there was no mis-representation on the part of the first respondent, the appellant would, under ordinary law, be entitled to recover that portion of the compensation referable to his four cents which had been paid over by mistake to the first respondent. Section 31(2) of the Land Acquisition Act recognises this right in the appellant.

The question in the present case is within what time fie should do it.

For the appellant, it is contended that the Article of limitation Act to be applied to his claim will be Article 120. This contention is sought to be supported by reference to the decision in Soma Singh v. Jaigobind Pande, AIR 1935 Pat 42, where a learned Judge of the Patna High Court held that, where the Government which acquired a particular property paid the compensation to one who was apparently entitled to it, a suit by a person who had a partial interest in the land so acquired to recover his aliquot share of the compensation, would be governed by Article 120, and not by Article 62 of the Limitation Act. There has however been no consideration in that case as to why Article 62 would not apply to the case; nor has it been considered wnether any other article of the Limitation Act would apply to justify resort to the residuary Article (Article 120). In our court, the decision in Krishnan v. Perachan, ILR 15 Mad 382, is one where Article 120 of the Limitation Act was applied to a claim in respect of money deposited by the Government under the provisions of the Land Acquisition Act. But facts of that case were somewhat peculiar. In the course of proceedings in execution of a money decree, a property belonging to the debtor was attached. At that stage, a third party came forward with a claim which was successful before the executing Court. Shortly thereafter, the property, which was the subject-matter of the claim proceedings, was acquired by the Government and the compensation money was paid over to the successful claimant. THE decree-holder contested the correctness of the claim order in a suit and he succeeded. After the termination or the suit, he brought the compensation money, which was paid over to the claimant by the Government, for attachment and sale as property belonging to his judgment debtor. and the plaintiff in the case before the High Court purchased the same. He filed the suit where a question arose as to the proper Article of the Limitation Act to be applied.

The learned Judges held that Article 120 and not Article 62 would apply and that the plaintiff would have six years' time from the date of the receipt of the money by the claimant from the Land Acquisition authorities. The important fact to be noticed in that case is that the claim order which was in favour of the claimant was valid until it was set aside. The right of the decree-holder to attach and sell and even of the plaintiff who became the purchaser of the fund (the compensation amount) in the course of the execution would not arise till that claim order was set aside. That was held to give the cause of action. The case was so distinguished in a later decision of this court in Shanmugham Pillai v. Minor Govindaswami, ILR 30 Mad 459.

2. Article 120, being a residuary article, can be resorted to only if no other article in the Limitation Act would apply. According to the respondent, the proper Article to apply in the circumstances of this ease would be Article 62, which provides 'for money payable by the defendant to the plaintiff for money received by the defendant to the plaintiff, it will be deemed to be money received for the plaintiff's use.' A period of three years from the date of the receipt of the money by the defendant is prescribed for a suit of that category. The Article contemplates claim against a defendant who had received money in circumstances which make it obligatory upon him ex aequo et bono to return the same to the plaintiff and covers cases of actions for money had and received. An action for money had and received on account of the rigidity and technicalities of the law of pleading in England have acquired a peculiar meaning. But, so far as this country is concerned, it has been held to include all actions for money had and received for the use of the plaintiff, whether they be actions which might be deemed strictly to be based on implied contracts or whether mey be merely to enforce an equitable claim to the return of the money had and received; (Vide India Sugar and Refineries Ltd. v. Municipal Council, Hospet, ILR (1943) Mad 521 : AIR 1943 Mad 19. The result of the cases on the subject is, that wherever a defendant receives money, which in justice a,nd equity belonged to the plaintiff, in circumstances which in law render it obligatory on him to return to the plaintiff, it will be deemed to be money received by the defendant for the use of the plaintiff. It is not necessary that there should have been any contract, express or implied, of agency between the parties, or even that there should have been a privity. In ether words, wherever money is received under circumstances which in law render it obligatory on the receiver to keep it for the use of another, that will give rise to a claim for money had and received.

3. In Baiznath tala v. Ramadoss, ILR 39 Mad 62 : AIR 1915 Mad 405, there was a suit under Section 73(2) C. P. C. by one of the decree-holders of a judgment-debtor for refund of an amount received by another decree-holder of the same judgment debtor by way of rateable distribution. It was ultimately found that the money claimed was in fact due to the former. The learned Judges held that the decree-holder who received the money in excess at what was strictly due to him could be said to have received money which in justice and equity belonged to the plaintiff, and that, in these circumstances, law rendered the receipt of such money as one for the use of the plaintiff. After referring to the decision of the Calcutta High Court in Mahomed Wahib v. Mahomed Ameer, ILR 32 Cal 527, the learned Judges observed :

'The conclusion arrived at in the Calcutta case was that the description of the suits mentioned in Article 62 as suits for money received by the defendant for the plaintiff's use pointed to the well Known English action in that form and that consequently the article ought to apply wherever the defendant has received money which in justice and equity belongs to the plaintiff in circumstances which in law render the receipt of it by the defendant a receipt for the use of the plaintiff.'

4. Article 62 was held to apply to that case. It would follow from the decision referred to above that, prima facie. Article 62, should also apply to a case like the present, where the respondent obtained money from the Government which really belonged to the appellant. Justice required that the respondent should pay it over to the defendant (sic appellant?). But that is not the entirety of the cause of action of the appellant. He has stated in effect that, but for a mistake under which the Government was labouring in regard to the extent of the title of the tirst respondent, it would not have paid the amount to him; on the contrary, the Government would have performed its statutory duty of finding out the owner, viz., the appellant, and paying it over to him. Therefore, the essential pan of the cause of action on which relief is claimed in the present case is one of a mistake on the part of the Government. In such a case, to apply Article 62 would undoubtedly create hardship, and will be quite unrelated to the situation.

Let us take an example; an aggrieved person might not be aware of the payment of compensation money due to him to another and if Article 62 were to apply before he could discover the mistake and file a suit time would have expired. We have therefore to see whether there is any other relevant article of the Limitation Act which would apply to avoid a situation of that kind. A case simitar to the present one arose in Viraraghava v. Krishnaswami, ILR 6 Mad 344, where also a claim arose in respect of a compensation amount paid under the Land Acquisition Act. Money was paid out by the Land Acquisition Officer in that case by mistake to a particular person. On a suit being filed by the true owner for recovery of the money, the court held that the proper article to apply would be Article 96 of Schedule I of the Indian Limitation Act. The effect of the decision is this. A sum of money might have been received either on account of fraud practised by the person receiving it, for example, misrepresenting that he had title to the money while in fact somebody else had such title; or, it might be that the person who received the money might have been honest but mistaken about his claim. But in either case, the payment by the authority (e.g. The Land Acquisition Officer) can be said to be the result of mistake). Article 95 of the Limitation Act prescribes a period of three years to obtain relief on the ground of fraud, when fraud becomes known to the party wronged. Article 96 covers a case where relief is sought on the ground of a mistake. That gives a period of three years from the date when the mistake becomes known to the plaintiff. There may be circumstances (referred to above) under which a money which is said to be money had and received for the use of the plaintiff would also amount to a receipt by reason of a mistake. In such a case, the question for consideration would arise whether the terms of Article 62 or Article 96 would apply.

That question has been considered by a Bench of this Court, consisting of Coutts Trotter C. J. and Krishnan J. in Ramiah and Co. v. Sadasiva Mudallar and Bros., ILR 48 Mad 925 : AIR 1925 Mad 1255. The defendants in that case had purchased eight bales of shirtings from a person who sold them on the representation that each bale contained 60 pieces. In the belief that they contained 60 pieces, the defendants sold them to the plaintiff. But it was found that there was a short delivery in that each bale consisted only of 50 pieces. The plaintiff who could not recover the damages from the original seller, i.e., the defendants' vendor sued the defendants for damages for short delivery. Coutts Trotter C. J. considering the nature of the action and also the proper article of the Limitation Act to be applied to it, observed at page 929 (of ILR Mad) : (at p. 1256 of AIR):

'It is said that this case falls within Article 62 of the Limitation Act; because it is a case of money had and received to the use of the pliantiff. No doubt, if one were drawing a pleading on English Court in the approved Pullen and Leake style, after setting out the facts, which, after all, is the real function of a pleading, one would end up by saying 'the plaintiff's claim is for money had and received to the use of the plaintiff.' But it does not follow that that article is exhaustive, because a later Article, Article 96 provides for a special case of money had and received to the plaintiff's use ......It runs as follows:

'For relief on the When the mistakeground of mistake 3 years becomes known tothe plaintiff.' .....It seems to me that that special article must override the general provisions of Article 62 and that it fixes a time when the plaintiff's cause of action depends upon the fact that he was mistaken as different from the time when the mistake was ascertained.....'

Krishnan J. concurred with the view that Article 62 would not apply to such a case where money was paid under a mistake of fact, both the parties believing that the bales contained 60 pieces each, while, actually, they contained only 50 pieces.

5. The principle laid down in the above decision that a special article would exclude the application of a more general one, is well settled in law. There is also another equally well-settled principle. That is this: in applying the statute of limitation, if two articles limiting the period for bringing a suit are found applicable for the same cause of action, and neither of the two can be said to apply more specifically than the other, the Court should choose that article which keeps alive the remedy rather than the one which bars the claim. This principle was accepted and applied in Tofa Lal Das v. Moinuddin Mirza, : AIR1925Pat765 , where a patnidar brought a suit to recover from the landlord a sum of money paid in excess of the amount demanded from him for cess. The relief in that case was based on the ground of mistake. It was held that Article 96, and not Article 62, would apply to the case.

6. Both the lower Courts as well as Jagadisan J, before whom the second appeal came up for hearing in the first instance, were of opinion that the only question to be decided was whether Article 62 or Article 120 would be the the appropriate article to be applied in the circumstances of the present case. From what we have stated above it will be apparent that neither of the two articles can apply. In our opinion Article 96 alone will apply. It is contended by Mr. R. Kesava Aiyangar, learned counsel appearing for the respondent that there is no sufficient pleading in the case to show that there was a payment by the Government by mitsake. We do not agree. Paragraph 8 of the plaint which deals with the matter, unmistakably shows that there was a mistake on the part of the Government when it paid the compensation amount into the hands of the first respondent. Such a mistake might have been the result of a misrepresentation on the part of the first respondent; or, it might not have been so. Nevertheless, when the Government proceeded to pay the money to a person in excess or what he was entitled to, the excess payment will be referable only to a mistake on its part.

7. If once it is held that Article 96 would apply, the question to be considered is as to when the mistake was discovered. The mistake referred to in the article is about the payment. Knowledge of antecedent proceedings might not always lead to the inference that the plaintiff had knowledge of payment. In the present case, it may be that the appellant was aware of the land acquisition proceedings or even of the fact that his land was also included in the land to be acquired. But the claim, in the present case is one of recovery of money paid by mistake. The relevant question for the purpose of the application of the article would, therefore, be when did the appellant come to know of the payment to the first respondent. On that question, there has been no finding by either of the Courts below. Jt has therefore become necessary, to call for a finding ftom the trial Court. We accordingly direct the trial Court to submit a finding as to when the appellant (plaintiff) came to know of the payment of the compensation amount by the Government to the first respondent.

8. Mr. Kesava Aiyangar has contended that the suit by the appellant was not maintainable for another reason as well, namely, on account of a defect in the notice issued by the appellant to the Government under the provisions of Section 80. As we stated at the beginning of the judgment, the appellant issued a notice to the Government under the provisions of Section 80 C.P.C., claiming that he was entitled to be paid the compensation referable to four cents of land and calling upon them to pay. But in the plaint no relief was sought against the Government, third defendant to the suit. There is therefore a difference between the terms of the notice issued and the plaint that was ultimately filed, the difference being that, while in the notice a claim was made against the Government, there was none in the plaint. This difference was taken advantage of by the contesting respondents before the lower Courts to raise a contention that as the notice was not in conformity with the provisions of Section 80 (since it did not say that the Government was going to be only a formal party to the action) the suit should be dismissed as against an the defendants. This defence has found favour with the Courts below. But we cannot accept this as a sound reason to reject the appellant's claim. We have referred to the provisions of Section 31(2) of the Land Acquisition Act, which states in effect that even if the payment of the compensation amount had been made by mistake by the Government, the remedy of the aggrieved person was to sue the person who received the money and not the Government. There is thus a statutory discharge of the obligations of the Government and the only remedy of the aggrieved person will be to recover the, money from the person who received it. Therefore, the suit in the instant case can be maintained against respondents 1 and 2 without impleading the Government as a party. In other words, the Government is neither a necessary or even a proper party to the action. It follows that any defect in the notice issued to the Government will not affect the suit so far as respondents 1 and 2 are concerned.

9. The finding called for by this judgment will be (sic) within eight weeks from the date of the receipt of this order by the trial Court. The parties will be at liberty to adduce further evidence if any they so choose.

10. One week will be allowed for filing objections, if any, after the submission of the finding.

* * * * *

11. (After the return of the finding, the Court delivered the following Judgment):--The learned District Munsif, Madurai Town, has submitted a finding, the correctness of which has not been challenged before us, that the appellant came to know of the payment of the compensation amount by the Government to the first respondent only in August1955. For the reasons stated by us already it must beheld that the suit out of which this appeal arises was filedwithin time. The appeal will be allowed with costs againstthe respondents 1 and 2 here and in the Court below.